Plummer v. Donald M. Drake Co.

• Decision Date: 15 January 1958
• Citation: 320 P.2d 245,212 Or. 430
• Parties: Stanley C. PLUMMER, Appellant, v. DONALD M. DRAKE COMPANY, an Oregon corporation, Respondent.
• Court: Oregon Supreme Court

Page 245

320 P.2d 245

212 Or. 430

Stanley C. PLUMMER, Appellant, v. DONALD M. DRAKE COMPANY, an Oregon corporation, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 18, 1957.

Decided Jan. 15, 1958.

C. S. Emmons, Albany, argued the cause for appellant. On the brief were Willis, Kyle & Emmons, Albany, and James F. Bodie, Prineville.

Robert T. Mautz, Portland, argued the cause for respondent. On the brief were Mautz, Souther, Spaulding, Denecke & Kinsey, Portland.

LUSK, Justice.

The principal question in this case is upon the constitutionality of the section of the Workmen's Compensation Law of this state, ORS 656.154, which prescribes the conditions under which a workman subject to the act, who suffers an injury due to the negligence or wrong of a third person not in the same employ, may seek redress against such third person. This section, with some modifications, has been a part of the compensation law since its enactment in 1913 (Oregon Laws 1913, ch. 112, § 12). Its constitutional validity was once before questioned, but on a different ground than that taken by the plaintiff here. See Atkinson v. Fairview Dairy Farms, 190 Or. 1, 13, 222 P.2d 732.

The section reads:

'(1) If the injury to a workman is due to the negligence or wrong of a third person not in the same employ, the injured workman, or if death results from the injury, his widow, children or other dependents, as the case may be, may elect to seek a remedy against such third person. However, no action shall be brought against any such third person if he or his workman causing the injury was, at the time of the injury, on premises over which he had joint supervision and control with the employer of the injured workman and was an employer subject to ORS 656.002 to 656.590.

'(2) As used in this section, 'premises' means the place where the employer, or his workman causing the injury, and the employer of the injured workman, are engaged in the furtherance of a common enterprise or the accomplishment of the same or related purposes in operation.'

The plaintiff filed his complaint alleging that he was an employee of a firm of architects engaged in the inspection of construction of a new high school building in Salem, and that the defendant was the general contractor for such construction; that the plaintiff was required to inspect the work of the defendant while it was engaged in pouring concrete into forms set up for that purpose, and to work in and around the place where the defendant was pouring concrete, and in and around the machinery being operated by the defendant; and that, as a result of the defendant's negligence in the operation of a motor-driven crane with a long boom thereon, a bucket full of concrete, which was suspended from the boom, swung out of control and struck the plaintiff, knocking him down and injuring him.

Included in defendant's answer to the complaint is a supplemental answer, as provided for by ORS 656.324(3) which reads as follows:

'I.

'That defendant is a corporation organized and existing under the laws of the State of Oregon and engaged generally in the construction business, and that defendant was the general contractor for the construction of the new high school in the City of Salem, Marion County, Oregon, and was actually engaged in the construction of said building.

'II.

'That Freeman, Hayslip & Tuff was and is a firm of architects and said firm was the architect employed as such on the construction of said new high school, the construction work of which as general contractor was being performed by the defendant.

'III.

'That at all times mentioned in plaintiff's complaint and herein the defendant and said firm of architects were employers subject to the Workmen's Compensation Law of the State of Oregon and in full compliance therewith.

'IV.

'That at the times referred to in plaintiff's complaint and herein the plaintiff was an employee of said architect and his work was subject to the Workmen's Compensation Law of the State of Oregon and subsequent to the accident referred to in plaintiff's complaint the plaintiff filed claim with the State Industrial Accident Commission of the State of Oregon for the benefits provided by the Workmen's Compensation Law and proceedings were thereupon had upon said claim and pursuant thereto the State Industrial Accident Commission paid to the plaintiff and plaintiff received and accepted, and as far as this defendant knows is receiving and accepting the benefits to which he is entitled under said law.

'V.

'That at the time of the accident referred to in plaintiff's complaint and herein plaintiff was a workman subject to the Workmen's Compensation Law of Oregon and was employed by an employer subject to said law and the defendant was an employer subject to said law and at said time the plaintiff was on premises over which his employer and the defendant had joint supervision and control and where they were engaged in the furtherance of a common enterprise and the accomplishment of the same or related purposes within the purpose, purport and meaning of the Workmen's Compensation Law of the State of Oregon in that plaintiff's employer was the architect for the construction of a high school building and the defendant was the general contractor for the construction of said building and by virtue thereof the plaintiff is exclusively confined to his claim under the Workmen's Compensation Law of Oregon in lieu of any and all claims against the defendant arising out of said accident.'

Plaintiff demurred to the supplemental answer on the ground that it did not state a defense, and appended to his demurrer a notice that in presenting it he would rely on §§ 10, 17 and 20 of the Oregon Constitution and Grasse v. Dealer's Transport Co., 412 Ill. 179, 106 N.E.2d 124, and Kleinschmidt v. Matthieu, 201 Or. 406, 266 P.2d 686.

Plaintiff's constitutional challenge is on narrow ground. He says that the statute discriminates in favor of a workman who is injured through the negligence of one who is not subject to the compensation law and against a workman who is injured through the negligence of one who is subject to the compensation law. If the other conditions of the statute are fulfilled, the former may seek redress against the tort feasor in a common-law action, but the latter is limited to his remedy under the compensation law. This, it is urged, constitutes a violation of Art. I, § 20, Oregon Constitution. ¹

The Workmen's Compensation Law of this state was enacted for the purpose of correcting recognized evils inherent in litigation between employees and employers on account of injuries sustained by workmen. Preamble, ORS 656.004. The statute has been held constitutional by this court, Evanhoff v. State Industrial Acc. Commission, 78 Or. 503, at page 524, 154 P. 106, at page 113, and, as said by Mr. Justice McBride in that case:

'* * * It has been a boon to the employers, the employed, and the community, which latter could formerly only offer to the injured laborer the charity of the almshouse instead of that just compensation which he may now receive without the humiliation of pauperism or the loss of self-respect.'

See, also, Roles Shingle Co. v. Bergerson, 142 Or. 131, 135, 19 P.2d 94.

Compensation laws of other states, more far reaching than ours because they are obligatory upon both employers and employees in hazardous occupations, whereas the Oregon act gives the employer an election not to be subject to it (ORS 656.024), have been sustained by the Supreme Court of the United States. Mountain Timber Co. v. State of Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann.Cas.1917D, 642; New York Central R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, Ann.Cas.1917D, 629. He would be bold, indeed, who would today question the power of the legislature to enact this type of legislation.

ORS 656.154, which is referred to by counsel as the immunity clause, has been construed and applied in a number of cases by this court, the most recent of which is Hensler v. City of Portland, Or., 318 P.2d 313. The others are: Johnson v. Timber Structures, Inc., 203 Or. 670, 281 P.2d 723; Kosmecki v. Portland Stevedoring Co., 190 Or. 85, 223 P.2d 1035; Atkinson v. Fairview Dairy Farms, supra; Brown v. Underwood Lumber Co., 172 Or. 261, 141 P.2d 527; Inwall v. Transpacific Lumber Co., 165 Or. 560, 108 P.2d 522.

In the Atkinson case, as stated, the constitutionality of the immunity clause, as there applied, was challenged. We construed the clause to apply to a case of assault and battery and, as so construed, held that it was immune to constitutional attack.

The controlling principles which guide the courts in determining questions of alleged unconstitutional discrimination or class legislation are the same whether it is the equal protection clause of the Fourteenth Amendment of the Constitution of the United States which is invoked, or the privileges and immunities provision in Art. I, § 20 of the Oregon Constitution. Fundamentally, classification is a matter committed to the discretion of the legislature and the courts will not interfere with the legislative judgment unless it is palpably arbitrary. The decisions of this court and the Supreme Court of the United States upon the subject are reviewed in State v. Pirkey, 203 Or. 697, 281 P.2d 698, and Savage v. Martin, 161 Or. 660, 694, 91 P.2d 273.

In the recent case of Hand v. Greyhound Corporation, 49 Wash.2d 171, 299 P.2d 554, an immunity clause of the Washington Compensation Law, RCW 51.04.010, similar to that in the Oregon law was sustained as against a claim by an injured employee of denial of equal protection of the laws. Long prior to this decision the Supreme Court of the United States in Northern Pacific Railway Co. v. Meese, 1916, 239 U.S. 614, 36 S.Ct. 223, 60 L.Ed. 467, summarily rejected the identical contention with respect to the Washington statute. The Court of Appeals for the 9th...